July 13, 2013

This new local article, headlined "Supreme Court ruling threatens to invalidate Kansas hard 50 sentences," reports on one of the potential state echoes of the Supreme Court's Sixth Amendment ruling in Allenye last month. Here are the essential details:

A U.S. Supreme Court decision that prompted the Kansas Attorney General’s Office to drop plans to seek a hard 50 sentence against convicted wife-killer Brett Seacat could invalidate the hard 50 sentence given to Scott Roeder, who was convicted of murdering abortion doctor George Tiller.

The ruling also may force prosecutors to abandon plans to seek hard 50 sentences in some other cases, including the case of a Wichita man who was convicted last week of stomping his girlfriend to death with steel-toed boots. It could prevent the state from seeking a hard 50 for a man convicted last month of strangling a Wichita woman in 2011 while on parole for murdering a woman in Lawrence more than two decades earlier.

District Attorney Marc Bennett said the ruling, known as the Alleyne decision, could have an impact on any hard 50 case in Kansas that is on appeal, and could change the way prosecutors deal with first-degree murder cases in the future.
“Clearly it will be an issue that we will have to address,” he said.

Defense lawyer Richard Ney was more blunt in his assessment of the ruling.
“The hard 50 is dead as far as it exists in Kansas right now,” he said. “For cases that are not final, and Roeder would be one of them, I think they’re certainly in question.”

If the state wants to keep its hard 50 sentencing law, Ney said, the Kansas Legislature will probably have to adopt a sentencing system that includes a separate penalty phase in any first-degree murder trial where prosecutors seek a 50-year minimum sentence.

When the state enacted a hard 40 sentencing law in 1990 – the precursor to today’s hard 50 law – it used such a system where the jury that found a defendant guilty of first-degree murder would sit at a separate penalty phase and determine whether to impose a hard 40 sentence. The state later turned the decision of whether to impose hard 50 sentences over to judges....

In releasing the Alleyne decision, the Supreme Court sent a similar case – Astorga v. Kansas – back to Leavenworth County District Court for resentencing. Kansas Attorney General Derek Schmidt cited both cases in his decision to abandon efforts to seek a hard 50 sentence in the Seacat case.

“Upon thorough review of the U.S. Supreme Court’s decision in Alleyne, the state does not believe the procedural and factual posture of this case allow for the application of (the hard 50 law) in its current form. Therefore, the state is no longer seeking the imposition of a mandatory term of imprisonment of 50 years,” he wrote in a court filing.

As it now stands, Kansas’ hard 50 law says a judge must weigh aggravating and mitigating factors before deciding whether to grant a prosecutor’s request to impose a hard 50 sentence.
The law lists several aggravating factors that include a prior conviction for a crime that caused death or great bodily harm, the commission of an act that creates a great risk of death to more than one person, and the commission of a crime in an especially heinous, atrocious or cruel manner.

The law also lists mitigating factors that may include a defendant’s age, a defendant’s lack of criminal history and the fact that a defendant was a minor participant in the crime for which he or she was convicted.

If a judge rules that one or more aggravating factors exist, and decides that the existence of such factors is not outweighed by any mitigating circumstances, the law says the defendant shall be sentenced to life without parole for a minimum of 50 years.

The folks behind the Kansas Defenders blog have been all over the impact of Alleyne in the Sunflower State via a number of notable new posts here and here and here.

"Juveniles, Sex Offenses, and the Scope of Substantive Law"

The title of this post is the title of this notable new article by Carissa Byrne Hessick and Judith M. Stinson now available via SSRN. Here is the abstract:

Substantive criminal law is an important factor in determining whether a juvenile will be tried as a juvenile or transferred to adult court. In particular, the gravity of the offense with which the juvenile is charged is a key component of most states’ discretionary waiver statutes, and it disproportionately influences judges when deciding whether to transfer juveniles. As a general matter, sex offenses are considered serious crimes. And a number of serious sex offenses are criminalized because of the victim’s age. These severe penalties reflect a policy determination on the part of legislatures that when sexual activity is illegal, either in whole or in part, because of the age of one of the participants — a category of crimes that we refer to as "age-determinative sex offenses" — participation in that activity is a serious crime.

The question we seek to answer in this Article is whether the justice system ought to distinguish between adult and juvenile offenders for these age-determinative sex offenses when assessing the seriousness or gravity of these crimes. We believe it should. In particular, this Article argues that, when the juvenile is in the same peer group as the victim — that is to say, the age difference between the victim and the offender is not large — substantive criminal law should recognize that an age-determinative sex offense is not nearly as serious as it would be if committed by an adult.

"Constitutionally Tailoring Punishment"

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on retail, individualized input and reflect the views and perspectives of multiple institutional actors.

This new understanding illuminates how both doctrines relate to the Court’s earlier regulation of capital sentencing and how checks and balances can promote just punishment in a pluralistic system. It also underscores the need for other actors to complete the Court’s work outside the confines of rights-based judicial doctrines, by experimenting with a broader range of reforms that are not constitutionally required but rather are constitutionally inspired.

July 12, 2013

DOJ delivers important messages in annual letter to US Sentencing Commission

Fulfilling its statutory obligation to deliver comments to the US Sentencing Commission, the US Department of Justice yesterday sent this very interesting 18-page letter to the USSC. The letter cover a lot of important ground in important ways, and here are a few paragraphs that struck me as especially noteworthy (with key emphasis added by me):

From page 3: "At the state level, leaders in and out of government have recognized both the costs and benefits of the sentencing reforms of the late 20th Century. From that recognition - derived from a variety of studies of these 20th Century reforms - a new transformation in sentencing and corrections policy is taking place in much of the country. The dichotomy of determinate and indeterminate sentencing is breaking down and is being replaced by a pragmatism that recognizes that (1) budgets are finite; (2) imprisonment is a power that should be exercised sparingly and only as necessary; and (3) while determinate sentencing elements do indeed promote some of the core purposes of sentencing, reducing reoffending and promoting effective reentry are also core goals that can be successfully achieved and must be included in any effective sentencing and corrections framework."

From page 7: "The Budget Control Act of 2011 sent a clear signal that the steady growth in the budgets of the Department of Justice, other federal enforcement agencies, and the federal courts experienced over the past 15 years has come to an end. Before sequestration, overall budgets had mostly been flat over the past four years. However, even then, as prison and detention spending had increased, other criminal justice spending, including aid to state and local enforcement and prevention and intervention programs, had decreased. In fact, the trend of greater prison spending crowding out other crucial justice investments goes back at least a decade and has caused a significant change in the distribution of discretionary funding among the Department's various activities.

"Now with the sequester, the challenges for federal criminal justice have increased dramatically and the choices we all face - Congress, the Judiciary, the Executive Branch - are that much clearer and more stark: control federal prison spending or see significant reductions in the resources available for all non-prison criminal justice areas. If the current spending trajectory continues and we do not reduce the prison population and prison spending, there will continue to be fewer and fewer prosecutors to bring charges, fewer agents to investigate federal crimes, less support to state and local criminal justice partners, less support to treatment, prevention and intervention programs, and cuts along a range of other criminal justice priorities."

From page 9:
"The reforms we are focused on - and that we think the Commission can help bring about - are changes to statutory and guideline drug penalties; improving reentry programming and providing greater incentives to offenders to participate in these programs; and simplifying and reforming the guidelines to better meet all the goals of the Sentencing Reform Act, including controlling the prison population. We believe drug penalties can be reformed, like many states have done, to focus severe penalties on serious and repeat drug traffickers, while providing alternatives or reduced sentences for non-violent, less serious offenders. We believe that both changes to the statutory minimum penalties in title 21 and changes to the so-called 'safety valve' exception to mandatory minimum penalties are needed.

"We are already working towards reforming some mandatory minimum laws along these lines - and along the lines suggested by the Commission in its report on the subject. Similarly, prison credits or other incentives can be reformed to promote more effective and efficient use of prison resources while simultaneously reducing reoffending. The President's last two budgets have included proposals in this area, and we think now is the time to enact them. In addition, we believe the guidelines can be reformed - by making them simpler - to reduce litigation and prison costs, reduce manipulation of sentences by litigants, and improve sentencing consistency."

As reported in this local article, there is a Cuyahoga County Capital Review Committee which will be making a recommendation about whether to pursue death penalty charges against notorious Cleveland kidnapper Ariel Castro. Here are the basics:

The committee is reviewing the case based on the June’s 329-count indictment. The committee will decide whether or not to seek the death penalty.
The CRC’s recommendation will then be presented to the county prosecutor.

Castro’s attorneys were invited to provide mitigating evidence to the committee to factor into their decision making process. Jaye Schlachet, Castro's attorney told NewsChannel5 Thursday that the mitigating evidence supplied to the CRC is not public record.

The prosecutor’s office said it’s unknown when the CRC’s decision will be made public at this time.
If the county prosecutor accepts the CRC’s recommendation to seek a superseding indictment to include the capital specification, making it a death penalty-eligible case, the case shall be re-presented to a grand jury. Upon re-presentment, the grand jury shall be informed that the State is seeking to include capital specifications that will make the defendant eligible for the death penalty in a capital case.

The capital review committee consists of Cuyahoga County Prosecutor’s Office employees and must meet within 30 days of the case’s original indictment.

This website from the prosecutor's official website sets out "Cuyahoga County Prosecutor's Office
Capital Case Charging Protocol."

July 11, 2013

Full Sixth Circuit grants en banc review in Blewett

A mere days after the Sixth Circuit panel in the Blewett case (which concerns possible retroactive relief for some crack defendants) decided not to alter its original opinion (details here), the full Sixth Circuit today entered this order:

ORDER filed granting petition for en banc rehearing filed by [AUSA] Ms. Candace G. Hill, to reinstate appeals. The previous decision and judgment of this court is vacated, the mandate is stayed. The Clerk has directed the parties to file supplemental briefs. Final briefing will be concluded on August 29, 2013. These cases will be argued before the en banc court on October 9, 2013, 1:30 P.M., EST.

This is not a big surprise, and I think it likely means that the full Sixth Circuit is not too keen on the equal protection arguments used by the Blewett panel. I fear that the full Sixth Circuti might not also be too keen on the Eighth Amendment arguments I put forward in this case late last month (details here), but that is not likely to deter me from filing additional papers concerning my Eighth Amendment ideas come August. I also may ask the Sixth Circuit for argument time (through I am not especially confident that anything which transpires at oral argument in this kind of case is going to move the opinions of many of the judges).

With all evidence now in, are there any (sentencing?) lessons in the Zimmerman prosecution?

I have a strong feeling that lots of readers have lots of strong feelings about the on-going George Zimmerman trial. As is my tendency, I do not post much (or even think much) about high-profile cases unless and until their is a conviction and a sentencing proceeding in the works. But perhaps there are insights to draw from the Zimmerman-Martin events and subsequent prosecution even before we get any verdicts, and I thought it might be valuable to provide this opportunity for readers to express any such insights.

I will be off-line much of the day, so I hope commentors will try real hard to keep comments respectful and on-point, while also still feeling free to express genuine opinions and perspectives.

Years late, California gives up defense of three-drug execution protocol

Way back in 2009, Ohio started completing executions successfully using the one-drug lethal injection protocol that death penalty litigants were claiming would be more humane. At that time, California's execution protocol had already been tied up in litigation for a couple of years, and I could think of no strong reason why California ought not just embrace a new one-drug protocol. This local story, headlined "California death penalty: State abandons defense of three-drug executions," reports that prison officials have finally come to see the error of their ways:

California has abandoned the legal defense of its delay-ridden lethal injection procedures, moving ahead to adopt a single-drug option that has been embraced by other states trying to enforce their death penalty laws.

The Brown administration has decided against appealing a May ruling that invalidated the state's three-drug execution method, which has been mired in years of state and federal court legal tangles.
Faced with a Wednesday deadline, the state chose not to seek a California Supreme Court review of the decision striking down the three-drug procedure because state officials failed to follow administrative rules when adopting them several years ago.

A prison system spokeswoman said the governor and other state officials will proceed with working out a method of executing condemned inmates with a single fatal dose of a sedative, which other states -- such as Ohio, Arizona and Washington -- have adopted to short-circuit legal challenges to their lethal injection procedures.

The governor has ordered prison officials to craft the single-drug option to "ensure that California's laws on capital punishment are upheld," the Department of Corrections said in a news release.
However, the latest development will not kick-start executions in San Quentin's death chamber. Approving the single-drug method could take a year or longer, and then it must be reviewed by the federal courts, adding further delays to California's death penalty
system.

More than 725 inmates live on California's death row, where there has not been an execution since early 2006 as a result of lethal injection legal challenges. Death row inmates sued over the three-drug execution method, arguing that it risked a cruel and inhumane death.

In response to a federal judge's concerns, former Gov. Arnold Schwarzenegger and current Gov. Jerry Brown both tried to overhaul the three-drug procedures, revising training for execution team members, built a new lethal injection chamber and crafted new rules for carrying out executions. But the state has botched the effort, twice violating the state's administrative procedures rules.

In the May ruling, the 1st District Court of Appeal scrapped the regulations, finding, among other problems, that state officials never publicly explained why they opted for the three-drug method instead of the single-drug option when they held hearings in 2010.

California could face other obstacles even if challenges to the single drug option fail. States across the country, including California, are struggling to assemble reliable supplies of execution drugs because of resistance from drug manufacturers and other problems, prompting separate legal challenges in other courts.

Huge hunger strike now on-going in California

As reported in this New York Times article, headlined "Hunger Strike by California Inmates, Already Large, Is Expected to Be Long," prisoners are expressing their displeasure with California prison conditions in a dramatic way. Here is how the article begins:

Nearly 29,000 inmates in California state prisons refused meals for the third day Wednesday during a protest of prison conditions and rules. The protest extended to two-thirds of the 33 prisons across the state and all 4 private out-of-state facilities where California sends inmates, corrections officials said.
Thousands of prisoners also refused to attend their work assignments for a third day, and state officials were bracing for a long-term strike.

Once the state tallies the official number of participants, the hunger strike could become the largest in state history. A similar hunger strike over several weeks in 2011 had about 6,000 participants at its official peak, corrections officials said, and a strike that fall had about 4,200.

The protest is centered on the state’s aggressive solitary confinement practices, but it appeared to have attracted support from many prisoners with their own demands for changes in prison conditions.

Jules Lobel, the president of the Center for Constitutional Rights and the lead lawyer in a federal lawsuit over solitary confinement, said he expected the strike to go on for much longer than previous ones because inmates would refuse to accept anything less than a legally binding agreement for immediate changes.

“Last time, they took promises of reforms, but they are not going to do that again, because two years later the reforms have not materialized in any real way,” Mr. Lobel said.
“This could become a very serious situation over time, because it seems we have a substantial group of people who are prepared to see it to the end if they don’t get real change,” he said.

UPDATE:This Wired story provides a timely account of why everyone should be deeply concerned about the overuse of solitary confinement. The piece is fittingly headlined "The Horrible Psychology of Solitary Confinement."

July 10, 2013

Talk in Missouri of turning to gas chamber due to lethal injection litigation

This new ABC News article, headlined "Missouri Death Row Legal Battle Could Bring Back Gas Chamber," reports on new talk of a possible return to an older execution technology. Here is how the article starts:

Twenty-one inmates on Missouri's death row have sued the state's Department of Corrections in federal court, alleging that the state's new lethal injection protocol -- which calls for a single injection of the powerful sedative propofol -- constitutes cruel and unusual punishment.

The Missouri Supreme Court has since halted all executions by lethal injection in the state as a result of the lawsuit, and now state Attorney General Chris Koster has hinted at bringing back the gas chamber.

The inmates claim in their lawsuit filed last August that Missouri cannot execute by lethal injection, because the injections now contain propofol, which has never been used before in any U.S. execution. The effects of propofol at lethal doses, they argue, are unknown and can never be tested in a clinical trial.

Koster said the federal litigation raises an "artificial hurdle … to prevent the state from carrying out the death penalty. Unless the court changes its current course, the legislature will soon be compelled to fund … alternative methods of execution to carry out lawful judgments," he said last week in a statement.

"Our state legalizes only two methods of execution, execution by lethal injection or execution by lethal gas," Nanci Gonder, a spokeswoman for the attorney general's office, told ABC News. "So if we couldn't execute by lethal injection, the alternative would be by lethal gas."

July 9, 2013

After supplemental Blewett briefing, Sixth Circuit panel stands pat

As regular readers likely recall, almost two month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here),
used equal protection principles to justify giving the new crack
statutory sentencings levels of the Fair Sentencing Act
retroactive effect. And last month, as reported in this post, the Sixth Circuit responded to the Government's en banc
petition with a letter to the parties express seeking additional
briefing "addressing whether
the Blewetts’ punishment in this case based on a 100-to-1 ratio of
crack to powder cocaine is
constitutionally disproportionate in violation of the Eighth
Amendment’s Cruel and Unusual
Punishments Clause. " I reported on the amicus brief covering Eighth Amendment issues that I wrote and filed on behalf of NACDL via this post, and I have been overdue in uploading these supplemental filings sent in by the parties:

Thanks to the fact that I am now in the case via my amicus efforts, I received via the automatic notification system this report on activity in the case this week:

Activity has occurred in the following cases:
12-5226 [USA v. Cornelius Blewett], judge order filed

ORDER filed. The judges of the panel adhere to their respective original opinions. The panel directs that the responses of the parties and the amicus brief of the National Association of Criminal Defense Lawyers be made part of the record in this case. Gilbert S. Merritt, Boyce F. Martin , Jr., and Ronald Lee Gilman, Circuit Judges.

This order is not especially surprising, but it is still noteworthy. And it now puts the onus on other judges of the Sixth Circuit to take up this case en banc within the next month, as the Sixth Circuit rules provides that "[a]ny active judge or any member of the panel whose decision is the subject of the rehearing may request a poll within 14 days from the date of circulation of the petition and the panel's comments. If a poll is requested, 14 days are allowed for voting." In other words, within the next 28 days, we should know for sure if the full Sixth Circuit will rehear the Blewett case or if instead the feds will have to ask SCOTUS to review the consequential work of the Blewett panel.
Related posts on Blewett:

Third Circuit affirms record-long insider-trading sentence

As reported in this Forbes piece, headlined "Inside Trader Matthew Kluger's 12-Year Prison Term Affirmed," a panel of the Third Circuit today rejected a range of arguments against a lengthy federal sentence for insider trading. Here are the basics:

The prison term given to Matthew Kluger by U.S. District Judge Katharine Hayden (New Jersey) represented the longest ever given to a person pleading guilty to charges of insider trading. Upon his arrest in April 2011, Kluger quickly decided to enter negotiations to plead guilty and throw himself on the mercy of the court. That strategy landed him in prison for 12 years.

Kluger was a lawyer (NYU Law) who worked on mergers and acquisitions of publicly traded companies at prestigious law firms, including Wilson Sonsini Goodrich & Rosati PC. He then passed that confidential information on to a middle man (Kenneth Robinson), who then passed it on to a trader, Garrett Bauer. The scheme worked for 17 years because there was no direct communication between Kluger, the source, and Bauer, the trader. In fact, the two had only met once at the beginning of their illegal trading. The Securities and Exchange Commission had suspicions of Bauer’s trading activities but could never tie him to a source for the information. However, when Bauer backed out of the trading scheme in 2010, Robinson and Kluger continued … that was when the SEC and the FBI pulled everything together. As David Voreacos (Bloomberg) noted in his excellent profile of Kluger, the scheme succeeded for so long because of its simplicity, the discipline of its limited number of people and its essential amoral nature.

The basis of Kluger’s appeal was that Bauer was supposed to buy only small number of shares, to avoid detection from authorities, and then the three would equally share in the profits. However, Bauer, unknown to Kluger, was trading large blocks of shares for his own benefit, resulting in millions in profits. Whereas Kluger believed that the profits were just around $2 million (a little of $600k each), the total profits from the information he provided to the conspiracy approached $37 million with Bauer receiving the majority of the money. Kluger was sentenced by Judge Haydan according to the Federal Sentencing Guideline based on the amount of the total gain and not the amount he personally realized from the trades. His guideline range at sentencing was 11-14 years … so 12 seemed fair to the judge.

The 3rd Circuit agreed with Judge Hayden, stating that Kluger, “… truly was a career criminal.”
Upon being notified of the decision, U.S. Attorney Paul J. Fishman (District of New Jersey) released a statement, “We argued at sentencing that a severe penalty was appropriate for one of the longest running insider trading schemes ever prosecuted, and are gratified the Court of Appeals saw it the same way.”

Kenneth Robinson, who recruited Bauer and hatched the initial plan with Kluger, did not appeal his prison term of 27 months. Robinson was the first to cooperate with authorities and recorded conversations with both Bauer and Kluger, which sealed their fate. Note to file; It pays to cooperate early.

The full panel opinion in US v. Kluger, No. 12-2701 (3d Cir. July 9, 2013) (available here) runs 48 pages, and this paragraph from the start of the opinion provides an effective accounting of the sentencing issues raised (and ultimately rejected) on appeal:

On June 13, 2012, Kluger filed a timely appeal, raising
the following arguments. First, he challenges the District
Court's calculation of his sentencing guidelines range. Second,
he contends that the Court procedurally erred in imposing the
sentence on him by (1) improperly denying him an evidentiary
hearing prior to his sentencing; (2) failing to resolve his
objections to the presentence investigation report; and (3) not
ordering discovery of materials that the govern
ment turned over
to the probation department for use in preparing the presentence
report. Finally, he contends that the District Court imposed a
procedurally and substantively unreasonable sentence

Will a jury get a chance to embrace or reject death penalty in Boston bombing case?

The question in the title of this post is prompted by this lengthy new AP article headlined "Seeking death penalty in Boston case? A long road." The article, inter alia, suggests reasons why a federal capital jury might not return a death sentence in the Boston bombing prosecution:

In the past 4½ years, the Justice Department has sought executions in several instances. But, in an indication of how protracted the process can be, none of the administration's cases has yet put anyone on death row.

Massachusetts abolished its own death penalty in 1984, but Tsarnaev is being prosecuted in federal court. Since the federal death penalty was reinstated in 1988, only three people, including McVeigh, have been executed. Others have pending appeals.

In cases where federal juries have chosen between life and death, they have imposed twice as many life sentences as death sentences — 144 to 73 — according to the Federal Death Penalty Resource Counsel Project, a two-decade-old group created by the Administrative Office of the United States Courts.

The jury pool for a case against Tsarnaev would come from a state that has rejected repeated efforts to reinstate the death penalty.
However, a former U.S. attorney in Massachusetts, Michael J. Sullivan, says viewing the state as opposed to the penalty is not entirely correct. Voters have supported reinstating the death penalty in non-binding referenda. And when Sullivan was U.S. attorney in Boston, his team of prosecutors won a death penalty verdict. That case is on appeal....

Before the Justice Department decides to seek the death penalty, a case moves through three tiers of review by federal prosecutors.
"There's going to be a lot of push in that U.S. attorney's office in Boston to seek the death penalty in this case," predicts former prosecutor Johnny Sutton, who chaired a panel of 17 U.S. attorneys advising the attorney general on law enforcement issues during the George W. Bush administration. Sutton was U.S. attorney for the Western District of Texas from 2001 to 2009.

On June 27, Carmen Ortiz, the U.S. attorney in Boston, said, "We will do everything that we can to pursue justice." Her comments followed the handing up of a 30-count indictment against Tsarnaev that included 17 charges carrying the death penalty or life imprisonment.
In Washington, federal prosecutors in a Capital Case Unit conduct their own analysis of death penalty cases. They advise the Attorney General's Review Committee on Capital Cases, which makes recommendations to the attorney general. Defense lawyers can weigh in, too.

Prosecutors seem to have strong evidence against Tsarnaev, but even if jurors agree that he was behind the explosions that killed three and injured more than 260, execution is far from guaranteed.
After a conviction, jurors must again be unanimous in their decision to impose the death penalty. In the terrorism case against Sept. 11 conspirator Zacarias Moussaoui, one juror declined to vote in favor of the death penalty, resulting in a life sentence.

In the Tsarnaev case, the decision could come down to whether the government can prove the attacks showed substantial planning and premeditation. The indictment against Tsarnaev contains extensive detail about his actions the day of the bombings and after, but contains a relatively small amount of information about prior weeks and months.

If Dzhokhar Tsarnaev's now-dead older brother, Tamerlan, was the planner and Dzhokhar played a lesser role, Dzhokhar's legal team could use that argument to his benefit. Another factor in Dzhokhar's favor: He had no prior criminal record. Tsarnaev also could benefit from what federal law calls "other factors," — anything in the defendant's background, record or character that weighs against a death sentence....

As the last paragraph of this excerpt highlights, other notorious domestic terrorists have escaped not only a federal death sentence, but also a federal death trial via plea agreements. I have been predicting for some time that a plea agreement with an LWOP sentence is the most likely "end game" for the Dzhokhar Tsarnaev prosecution. And yet, I cannot help but wonder if the Boston victims might press for federal prosecutors to reject any plea offer and at least give a federal jury a chance to consider whether a death sentence is appropriate for this high-profile crime.

July 8, 2013

"In Opposition to the Mandatory Registration of Juvenile Sexual Offenders"

The title of this post is the title of this short paper by David Katner, which is now available via SSRN. Here is the abstract:

The mandatory registration of juvenile sex offenders incorrectly assumes that the same dynamics of adult sex offenders apply to juveniles. In doing so, this group of juveniles is labeled and placed in a category that will ultimately hinder their development, rather than contribute to their rehabilitation. Accordingly, this mandated registration will have a negative effect on these individuals along with society as a whole based upon how they are perceived by others in the community and their lack of ability to contribute to the greater good.

Effective review of modern state clemency procedures as Kentucky's is challenged

This recent AP article, headlined "Kentucky Alone In Lack of Formal Clemency Procedure," provides an effective review of different states' different approaches to the clemency process. Here are excerpts:

The power of kings to spare a condemned person's life lies solely with the governor in Kentucky, which is one of a select few states where the chief executive can spare death row inmates, shorten sentences and forgive crimes without oversight or having to explain his actions.

A review of clemency laws and policies across the country by The Associated Press shows nearly all other states have regulations to follow and oversight - including in some cases having to explain a decision to legislators.
"The trend in states is to spread the power and make it a little more democratic," said P.S. Ruckman, a political science professor at Rock Valley College in Rockford, Ill., who blogs about clemency. "Kentucky is on the wrong side of that trend."

Since the reinstatement of the death penalty in 1976, two condemned inmates in Kentucky have gotten reprieves and right now, the state is barred from executing anyone until a judge decides on the legality of the drugs used. The state has executed three people in that time.

Two death row inmates are challenging that power and the way the clemency system itself is set up.
Robert Foley and Ralph Baze are awaiting execution for multiple killings. They filed suit in May in Franklin Circuit Court, asking a judge to halt executions until a new set of procedures will clearly spell out rules.

The attorney for the inmates, Meggan Smith, said if the clemency procedures were more open, inmates seeking a commutation or pardon may have a better chance and everyone involved would better understand how the decision is made.
"What we are seeking is an open, transparent procedure, which will benefit the Commonwealth, victims' families, those seeking clemency, and the public in general," Smith said.

Kentucky's governor has absolute discretion in granting clemency - no recommendations, hearings or requests are needed for the state's top official to decide someone should not be put to death. It's a power similar to those available to governors in New York, New Mexico, North Carolina, North Dakota and Missouri....

Ruckman found the challenge to the clemency process novel. While there have been suits in federal court and in Kentucky contesting the scope of the powers, those have generally reaffirmed the ability of governors and presidents to pardon as they choose. Ruckman noted few suits have attacked the method by which clemency is granted.

Fifteen states - California, Georgia, Idaho, Louisiana, Maine, Maryland, Michigan, Nebraska, Nevada, New Hampshire, New York, Tennessee, Texas and Utah - grant the governor or pardon board discretion to set a hearing when they determine one is necessary.

Two states - Alaska and Colorado - provide victims or others the opportunity to submit written comments on pending clemency petitions. Two states -Iowa and Kansas - permit a pardon board or governor to interview key witnesses concerning a petition.

Other states have a mix of processes, with the governor having to explain clemency decisions to lawmakers in some cases, while states such as South Carolina have an outside board make clemency decisions.

The president has almost unlimited discretion to grant clemency under the federal system.
"When all is said and done, Kentucky leans toward the federal model," Ruckman said.

July 7, 2013

Yale Law Journal provides 500+ pages of summer Gideon reading

I am already way behind on my summer reading, and the June 2013 Yale Law Journal issue all but ensures I will never catch up. This issue, which can be accessed in full via this link, includes this extraordinary collection of Gideon-related essays: